Magee & Stafford
[2022] FedCFamC1F 20
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Magee & Stafford [2022] FedCFamC1F 20
File number(s): CAC 1494 of 2018 Judgment of: CLEARY J Date of judgment: 27 January 2022 Catchwords: FAMILY LAW - PARENTING – competing parenting applications by each of the parents and the paternal grandmother of one child aged six years – Where the child has lived with the father for four and a half years – Where the child has had sporadic contact with the mother – Where the father has been reluctant to support a relationship between the child and the mother – Where both parents as teenagers have experienced mental illness and illicit drug use – Where both parents were separated as children from their respective families of origin – Where the mother was 16 years when the child was born – Where all parties have engaged in anti-social behaviour and have criminal records – Where the parents and the child have lived with the paternal grandmother – Where the paternal grandmother has a relationship with the father and a good relationship with the mother – Where the mother has improved the stability of her mental health and domestic life – Where a change of residence will be a big change for the child – Where the risk to the child of losing her relationship with her mother and becoming increasingly isolated in the care of the father outweigh the risks that the mother may not be able to adequately care for the child – Where the paternal grandmother will assist and support the mother and child – Where the paternal grandmother is willing to assist the father – Ordered the mother to have sole parental responsibility for long term decisions and for the child to live with the mother. Legislation: Family Law Act 1975 (Cth) s 60cc Division: Division 1 First Instance Number of paragraphs: 165 Date of hearing: 19-22; 25 October 2021 Place: Newcastle Counsel for the Applicant: Mr Guyder Solicitor for the Applicant: Resolve Legal Professionals Counsel for the First Respondent: Mr Boyd Solicitor for the First Respondent: The Family Law Co Counsel for the Second Respondent: Mr Willoughby Solicitor for the Second Respondent: Barbara Garrick and Associates Solicitor Advocate for the Independent Children’s Lawyer: Ms O’Rourke Solicitor for the Independent Children’s Lawyer Legal Aid NSW Newcastle Family Law ORDERS
CAC 1494 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MAGEE
ApplicantAND: MR STAFFORD
First RespondentMS B STAFFORD
Second RespondentINDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
CLEARY J
DATE OF ORDER:
27 JANUARY 2022
THE COURT ORDERS:
1.That all prior parenting orders made in relation to X born 2015 (“the child”) are discharged.
Residence
2.That the child live with the mother.
3.Change of residence for the child shall be effected as follows:
3.1The father shall deliver the child to the paternal grandmother within no less than 48 hours of the date of these orders at the home of the paternal grandmother [unless the father and paternal grandmother agree to another changeover point]; and
3.2The paternal grandmother shall deliver the child into the care of the mother within 48 hours thereafter.
Parental Responsibility
4.That the mother have:
4.1Sole and exclusive parental responsibility for long term decisions concerning the care, welfare and development of the child including, but not limited to, enrolment at school and medical treatment;
4.2Parental responsibility for day to day decisions concerning the care and welfare of the child when the child is living with her.
5.That the father have parental responsibility for day to day decisions about the care and welfare of the child when the child is spending time with the father.
6.That the paternal grandmother have parental responsibility for day to day decisions about the care and welfare of the child when the child is spending time with the paternal grandmother.
7.That the mother advise the father in writing (including electronic writing such as text and email) of decisions taken by her in relation to the exercise of parental responsibility long term including:
7.1The school in which the child is enrolled for 2022 and any subsequent change of enrolment;
7.2Specialist medical treatment for the child.
8.That the mother keep the paternal grandmother advised in person or by telephone or by electronic message about the enrolment of the child at school, her progress at school, her health and her welfare.
Time and Communication with Father
Time
9.For a period of one month following the making of these orders the father spend no face to face time with the child.
10.Thereafter the father shall spend time with the child, unless otherwise agreed in writing between the father and the mother, as follows:
10.1Commencing Saturday 5 March 2022, during school terms, on the first weekend of each calendar month from Saturday morning at 11.00 am until Sunday at 4.30 pm, with changeovers to occur at Suburb D Railway Station;
10.2Commencing Saturday 2 July 2022, for five nights during each NSW school term holiday period commencing on the first Saturday following the conclusion of the school term at 11.00 am and concluding on the sixth day at 4.30 pm, with changeovers to occur at Suburb D Railway Station;
10.3Commencing 2022, continuing in alternate years, half of each Christmas school holiday period, from the fourth Saturday following the conclusion of the school term at 11.00 am and concluding on the last Saturday of the Christmas school holiday period at 4.30 pm; and
10.4In alternate years commencing December 2023, from the first Saturday following the conclusion of the school term at 11.00 am and concluding on the fourth Saturday at 4.30 pm, with changeovers to occur at Suburb D Railway Station.
Communication
11.The mother shall within 48 hours of the date of these orders provide to the father a mobile telephone number for the purpose of the father contacting the child.
12.For a period of one month following the date of these orders, the father shall communicate with the child each Monday and Thursday at a time between 5.00 pm and 6.00 pm (unless another time is agreed in advance) by telephone or FaceTime with the father to contact the mother’s telephone on the number provided NOTING that the mother may supervise such contact if she wishes and terminate the call if it becomes upsetting to the child.
13.Thereafter the father shall communicate with the child each Thursday between 5.00 pm and 6.00 pm on the same terms.
Time and Communication with Paternal Grandmother
14.The paternal grandmother shall spend time with the child as agreed between herself and the mother but in any event, for not less than one weekend in each term school holiday period from after school Friday until Sunday 6.00 pm and for five days in each Christmas school holiday period.
15.That the paternal grandmother be at liberty to communicate with the child at any reasonable time and to that end each parent shall facilitate communication between the child and the paternal grandmother when the child is living or spending time in the household of that parent.
Communication with Mother
16.That the mother be at liberty to communicate with the child at any reasonable time and to that end the father and the paternal grandmother shall facilitate communication between the child and the mother when the child is spending time in the household of that party.
17.The father shall within 48 hours of the date of these orders provide a mobile telephone number to the mother for the purpose of the child contacting the mother.
Provision of Information
18.The mother shall authorise the school which the child attends to provide information, of the type made available to parents, to the father and to the paternal grandmother (at their own cost if any) including school reports, newsletters and applications for school photographs.
19.Each party shall notify the other parties of any change in their telephone number, email address and residential address not less than 72 hours from the date of change.
20.That in the event the child is suffering from an illness or medical emergency the party who has the care of the child is to notify the other parties as soon as reasonably practicable.
Restraints on Conduct
21.The parties are restrained from:
21.1Denigrating each other (or each other’s partner or extended family) in the presence or hearing of the child and all parties will do all things necessary to ensure that no other person makes critical comments about any other party (or the other party’s partner or family) in the presence or hearing of the child;
21.2Discussing these Court proceedings with the child or showing her any document from these Court proceedings.
Independent Children’s Lawyer (“ICL”)
22.The mother shall, as soon as is practicable, arrange for the child to attend on the ICL, in person or by videolink, to enable the ICL to explain these orders to the child and to answer any relevant questions the child may have.
Provision of Orders
23.That a Senior Judicial Registrar of this Court provide a copy of these Orders and Reasons to the Secretary of the NSW Department of Communities and Justice (“DCJ”).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Magee & Stafford has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CLEARY J:
INTRODUCTION
These are competing applications for parenting orders by the parents, and the paternal grandmother, of the subject child, X, aged six years at date of trial.
The parents met and began living together in March 2014 when the mother was 15 and in the care of the Minister. The father was 19. He was the father of one child, W, aged nine months, who lived with her own mother.
The subject child was born in the following year, in 2015.
In early 2017 when the child was 17 months old the parties separated. The mother moved with the child to live with the maternal grandmother in City O. She had not told the father of her intention to leave.
Three months later the mother was arrested, charged with (and later convicted of) stealing. The maternal grandmother declined to have the mother bailed to her home and promptly arranged for the subject child to be collected by the father.
The mother returned to Sydney to live. Her use of illicit drugs re-emerged and her mental health deteriorated.
The subject child has lived with the father for the four and a half years since those events. The child has had sporadic contact with the mother. The paternal grandmother has firmly insisted on visiting.
THE PARTIES
The Applicant Mother
The mother is aged 23 years. Since October 2020 she has lived in an inner suburb of City R with her partner Mr E aged 26, his six old son V and their own two children, Y (three) and Z (four months).
The mother is not in the paid workforce and is engaged full time in the care of the children.
The mother reports having been diagnosed with Anxiety and Depression and drug induced mental illness.
The mother was removed into care at age 12 and did not complete her education. Mr E left school at the end of Year 10 and has no qualifications.
The mother and her partner are supported by Centrelink payments.
The First Respondent Father
The father is aged 27 years. He has at least three children, the subject child, his older daughter W aged eight who lives with her mother, and T, his infant son. The paternal grandmother asserts that she is aware of three more children of the father who live with their respective mothers. The father was non-committal on that topic.
The father and the subject child live in a property in Suburb F, a suburb in Sydney. The house was formerly occupied by the paternal great grandmother who is now ill and living in an aged care facility.
The father’s friend Ms G and their new born infant son T also live in the property. The father rejects the notion of his “being in a relationship” with Ms G who, in her oral evidence, agreed that they were not a couple.
The father is supported by Centrelink benefits. He has received a disability pension since he was 17 years old. He reports that he has been diagnosed with Depression, Anxiety, Obsessive Compulsive Disorder, Conduct Disorder and Paranoia. Those diagnoses are confirmed by documents tendered into evidence. There was no evidence from a current treating practitioner.
The father is impulsive, suspicious and at times aggressive. These characteristics lead him into conflict.
The Second Respondent Paternal Grandmother
The paternal grandmother is aged 59 years. At date of trial she was living, with a boarder/carer, in her home in Suburb Q, a suburb of City R. She broke her ankle in a fall in June 2021 and has required assistance since. She is hoping to move to live in J Town closer to her daughter.
The paternal grandmother has three children of whom the father is the eldest.
Until recently her younger son Mr S was also a member of her household. He moved out in December 2020. Since 2021 he has been bail refused in K Prison.
The paternal grandmother separated from the father of her children in 2000. He subsequently died either by suicide or drug overdose in 2018.
The paternal grandmother has maintained a good relationship with her own mother-in-law Ms C, the paternal great grandmother. The father aged seven years was removed into the permanent care of the paternal great grandmother in Sydney in 2001 and did not return to the household of his parents.
THE TRIAL
The trial was allocated for four days 19-22 October 2021. It was conducted electronically by Teams software. All parties were legally represented. The trial was extended to a fifth day (25 October 2021) for submissions and was concluded on that day.
APPLICATIONS AND PROPOSALS OF THE PARTIES
The Applicant Mother
By her Second Amended Initiating Application (filed 4/03/2021) the mother put forward carefully formulated orders in the alternative.
In the event that the Court found that the mother was not a risk to the child the proposal was that:
·The child move to live with the mother;
·The mother have sole parental responsibility for the long term care, welfare and development of the child and that she communicate with the father and paternal grandmother, keeping them each advised of decisions taken;
·That the father spend time with the child including for one weekend per month, school holidays and other special occasions;
·That the paternal grandmother would spend time with the child as agreed between the mother and the paternal grandmother, for 10 days in Christmas holidays, with communication at any reasonable time.
Alternately, if the Court found it was not in the child’s best interests to live with the mother then the proposal was that:
·The child move to live with the paternal grandmother;
·That the mother and the paternal grandmother have “joint parental responsibility” for the long term care, welfare and development of the child, keeping each of the parents informed of decisions taken;
·That each of the parents spend time with the child for one weekend per calendar month during school holidays and at other special times;
·Specific orders about communication, school information and restraints on conduct.
In submissions the proposal was put, and a Revised Minute[1] tendered, that if the child did move to live with the mother, there should be a three month period of no face to face time with the father, but communication with the father on alternate days.
[1] Exhibit 44.
The moratorium was to enable X to adjust to the change of household and also to be protected from the father’s distress and reaction to the loss of the child living with him.
The First Respondent Father
The father proposes:
·That the child continue to live with him and that he have sole parental responsibility;
·That the child would spend time with the mother and with the paternal grandmother as agreed between the father and each other party;
·Specific issues and restraints.
The orders proposed by the father would be a continuation of current arrangements. The outcome would likely be uncertainty, in the absence of agreement, as to when the mother or the paternal grandmother would see the child, as has been the case to date.
The Second Respondent Paternal Grandmother
The formal proposal of the paternal grandmother was modified by a Minute of Order:[2]
[2] Exhibit 45.
·That the child live with her, at least for 12 months;
·That she have sole parental responsibility for the child;
·Both parents would spend time and communicate with the child as agreed in writing between herself and each of the other parties;
·Thereafter, conditional on a medical report confirming mental health treatment of the mother and a positive assessment of her capacity as a parent:
·The child to move to live with the mother;
·The mother and the paternal grandmother would have equal shared parental responsibility;
·Specific issues and restraints.
The paternal grandmother now has a good relationship with the mother, and considers that the mother has taken sufficient control of her life to be able to care for the subject child.
Her proposal reflects legitimate concerns arising from the mother suffering from unstable mental health in the past.
The Independent Children’s Lawyer (“ICL”)
The ICL did not take a position at the commencement of trial.
In submissions and by a Minute of Order handed up at that time,[3] the ICL proposed that the child move to live with the mother who would have sole and exclusive parental responsibility for her.
[3] Exhibit 43.
For a period of three months the child would spend alternate weekends with the father and thereafter one weekend each month and time in school holidays. There was provision for regular telephone contact and at special times.
The paternal grandmother would spend one weekend in each two month period and as otherwise agreed between the mother and paternal grandmother.
The ICL further proposed an order compelling the mother to attend on her doctor, obtain referrals and comply with recommendations of treating doctors and psychologist.
THE ISSUES
Should the subject child remain living in Sydney with the father?
If so, what time and communication should the mother and the paternal grandmother have with the child?
Should the child move to City R to live with the mother?
If so, what time and communication should the child have with the father?
Could time and communication for the paternal grandmother with the child be left for the mother to arrange or should an order be made?
Should the child move to live in City R/J Town with the paternal grandmother?
If so what time and communication should the father and the mother have with the child? Should that be left to the discretion of the paternal grandmother?
EVIDENCE
The documents relied on were as follows:
The Applicant Mother – Ms Magee
(a)Second Amended Initiating Application filed 4/03/2021;
(b)Notice of Risk filed 29/08/2018;
(c)Affidavit of the mother filed 13/08/2021;
(d)Affidavit of Mr E, the mother’s partner, filed 13/08/2021;
The Respondent Father – Mr Stafford
(e)Amended Response to Initiating Applicant filed 18/08/2021;
(f)Notice of Risk filed 24/08/2018;
(g)Affidavit of the father filed 18/08/2021;
(h)Affidavit of Ms G, the father’s friend, filed 14/10/2021;
The 2nd Respondent Paternal Grandmother – Ms B Stafford
(i)Response filed 7/11/2019;
(j)Notice of Risk filed 7/11/2019;
(k)Affidavit of the paternal grandmother filed 6/08/2021;
Reports
(l)Family Report of Dr L dated 13/03/2020;
(m)Family Report of Dr L dated 4/07/2019;
(n)Child Dispute Conference Memorandum by Ms M dated 21/11/2018.
ORAL EVIDENCE
The Mother – Ms Magee
The mother is now 23 years of age. Her childhood effectively ended at age 12 when she began using drugs and was removed from her family of origin into care in the community. Her adult life began at 15 years when she moved in to live with the father. The subject child was born in the following year. The opportunity fell away to be fully educated, to acquire life skills such as driving a car and to entering the paid workforce.
The mother presented as an intelligent young woman who conducted herself with dignity. She produced a clean drug screen[4] and the Court accepts that she has not been using illicit drugs for the past three to four years. There is no evidence to the contrary.
[4] Exhibit 5.
The mother appeared to be well aware of the fragility of her legal position with regard to the subject child who has been living with the father for four and a half years. Her love for the child and regret for lost years of her childhood compelled the mother to go through with these proceedings. She has worked hard to stabilise her life.
Mother’s Partner - Mr E
The mother’s partner presented as a mature and serious man aged 26 years. He has had the full time care of his now six year old son V for the past four years since his relationship with that child’s mother ended in volatile emotional circumstances in July 2017.[5]
[5] Exhibit 11.
His own childhood was difficult. Release from foster care as a mid-teenager lead to conflict between himself and his mother’s new partner.
The Court accepts that Mr E has distanced himself from all those people including family members who are likely to cause trouble for him.[6] He has embraced his life with the mother, their two children and his older son. He is content to remain living in City R.
[6] Exhibit 13.
Mr E’s goal in 2021 was to get a driver’s licence and a car.
Mr E acknowledged that he had not met the subject child, “No I don’t want to take Ms Magee’s [the mother’s] time.” He had considered the implications of the subject child moving into his household. First, that they would need to move, “We’d want a house, we are in a big apartment” and next, that the child would need time with her mother as well as learning to be part of a big family of children, “Sometimes make it a family day out, not every time.”
The Court concludes that Mr E has a lot to offer the child. When asked if he wished to meet the father he said spontaneously, “One day we’ll all get together if he wants”.
The Father – Mr Stafford
The father presented as a solitary rather isolated man of 27 years. He has lived with his paternal grandmother since age seven years. He was expelled from school in Year Nine. When asked about his literacy level his answer was “Read and write. Pretty bad. I won’t lie”. He was then asked whether he had read the mother’s affidavit. He said he had “read over it quickly”. The answer was defensive and suggested that the father may have read very little of the documents in the case. If so, the father missed the opportunity to understand all that the mother has done to improve her health and stability in the years since the separation of the parties in 2017.
The father did not have a present intention to improve his literacy or to move into paid employment.
Those factors are likely to limit the child doing well at school and valuing education and employment if the current parenting arrangements continued.
The Court accepts that the first priority of the father is his daughter, the subject child. There can be no doubt that he loves her, but his idea of protection for her has been to keep her away as much as possible from the mother, her partner and their children, and from the paternal grandmother.
The child is close to Ms G and has called her “Mum”, but given the limited relationship between the father and Ms G, not committed not exclusive, Ms G is likely to move on and out of the child’s life. That may not affect the father unduly but would be a loss for the child who sees very little of her own mother.
There was evidence from the father about six year old X having her own telephone, and a DVD player and television in her bedroom. There was no evidence of friends coming to play or the child playing in the homes of school friends.
The father was closely cross-examined about an incident which had recently occurred at the home of Ms G’s family. The father had taken Ms G with her four week old baby, and the subject child, to visit.
As a result of a rude and provocative remark to the child by Ms G’s 16 year old brother on arrival, the father allowed himself to become involved in a dangerous brawl. Punches delivered between Mr H and the father; yelling shouting confrontation. Ms G was knocked over, the baby’s head was hit and he was taken to hospital for observation. The subject child heard and saw all of it.
The father defended his own actions and really dismissed the proposal put to him that he could have gone home to avoid things getting out of hand.
By defending the child from an insulting remark, as he saw it, the father exposed her to a horrifying experience set out with particularity in the Application for an AVO for the protection of the father from Ms G’s father.[7]
[7] Exhibit 14.
This very recent violent behaviour is consistent with past behaviour by the father. The father expects trouble. He has security cameras at his home. He has received threats; that his house would be fire bombed; that he would be “cut”.
The father undertook an anger management course. To his credit he said he had learnt not to let a situation such as allegations being made or police contacting him “set him off”. He now calls on police to make applications for protective orders. He does so very often, “There are a lot of people making allegations against me.”
In another setting, that of the child’s school, the father received the Kindergarten First Semester Report for the child. He realised that her 46 partial absences could be raised in these proceedings. He then contacted the school and asked for an exemption for the absences “as he is currently going through Family Law Court and it would not appear in his favour.”[8] The home school liaison officer quite properly declined the request.
[8] Exhibit 15.
The father began swearing at the liaison officer “stating that the police all knows him that he would come ‘bash people’ and ‘cause a scene’ with the family members he has conflict with at the school”.
This was the father explaining that he had to bring the child late to school to avoid inevitable conflict with his own sister if their paths crossed.
The father chose to disrupt the child’s school days rather than address whatever the real problem was with his family members or to change schools. The father believed he was being protective but the outcome was adverse for the child.
The Father’s Friend - Ms G
Ms G was 19 years at date of trial. She was about 16 years, or perhaps younger, when she began an intimate relationship with the father.
She was both supportive of and defensive about the father. She described him as “not really violent, just that one incident at my parents but he was defending his child”.
She dutifully described him as “a friend not a partner”.
Ms G is clearly very fond of the subject child, “she’s a fantastic kid”. She has accepted from the father that “the mother isn’t really capable of having X because she’s so full-on”.
Ms G has not met the mother. To her credit Ms G said she thought X would enjoy regular time with her mother.
Ms G too has a lot to offer the child; warmth, interest and the development of the relationship between T [her child with the father] and the subject child. Her ambiguous relationship with the father, and the hostility between her family of origin and the father, do not bode well for an ongoing relationship between Ms G and the subject child.
The Paternal Grandmother - Ms B Stafford
The paternal grandmother presented as a strong, independent woman committed to all her children and grandchildren. She has been in trouble herself and has a criminal record.
The mother and father as a young couple lived with the paternal grandmother in different locations. The subject child is well known to her and well loved.
The paternal grandmother did not appear to believe that the father would “wipe his hands of her” as he said he would if the child was removed into her care, “He rings me every day. I can’t see it changing.”
The Court accepts that the paternal grandmother is committed to a relationship with the subject child, would like to have the child with her, but would accept the child going to live with the mother now that she has achieved stability in her health, accommodation and family.
The Court concludes that the continuity of the paternal grandmother with both parents will be of support and assistance to the child.
The Child Court Expert - Dr L, clinical psychologist
The key element of the oral evidence of the Court Child Expert (previously known as the Family Consultant) was the significance she placed on skilled parenting for the child: “real concerns for X in anybody’s care, she has experienced so much inconsistency, if her mother can provide that, good”.
To that end, the Court Child Expert identified what was needed if the child lived with the mother as follows:
·A drug free lifestyle;
·Her mental health well cared for [medicated and stable];
·Strategies for X’s care in place;
·Professional supports in place;
·For the mother to connect to N Services or similar program.
The expert was taken to two problem areas for X. The Expert expressed concern about both.
The first was the propensity of the father to take X to school earlier or later than expected, in order to avoid his sister with whom he was in conflict. The expert agreed that the evidence suggested that the father could not manage conflict with another person and it was not a good outcome for X to have had 46 partial absences in Semester One of Kindergarten, “No and so much more. Routines are not consistent, there is so much importance in the first part of the day (in the playground) managing time and being on time”.
The second was the violent confrontation between the father and the mother’s family which occurred in X’s presence. Having been taken through the event step by step the Court Child Expert concluded: “It indicates he doesn’t have capacity to control his emotions and behaviour.”
The Court accepts that opinion which is consistent with the evidence overall. The father is a man who cannot step back from what he perceives to be threats or slights. It is likely that he perceives his own actions as protective of himself and of X. The Court concludes X must be bewildered by the changes in routine and frightened by the aggression she has been exposed to.
THE LAW
The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
(a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
(b)Children are protected from physical and psychological harm;
(c)Children receive adequate and proper parenting to help them achieve their full potential; and
(d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption does not apply if there has been family violence and may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.
Parental Responsibility
The two parents met as very young people and have seen little of each other for four and a half years.
The father has not kept the mother advised of events in the child’s life. He has been reluctant to support a relationship between the child and the mother. He maintains the view of the mother which he held when they separated, that she was unreliable, unstable and a drug user. He has been unwilling to explore the possibility of her having changed.
The parents do not communicate effectively. The mother and the father maintain communication with the paternal grandmother.
The only way to provide stability and consistency for the child is for one parent to have the authority to make the big decisions for the child and implement them and then to advise the other parent of decisions taken.
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
The father fears losing the child and has not supported the relationship between the child and the mother. He refers to the mother by her name “Ms Magee” when talking to the child.
The mother understands that the child loves the father and that he has cared for her. There is real benefit to the child of restoring and developing her relationship with the mother in circumstances where the mother supports the child’s relationship with the father. That is the pathway for the child to have a meaningful relationship with both parents.
The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence
The child was most probably exposed to violence as an infant in the care of both parents. At almost two years she was abruptly separated from her mother and delivered by her maternal grandmother to the care of her father.
Additional Considerations
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The subject child was observed twice by the Court Child Expert.
As a three year old she was spontaneously affectionate with her father Ms G and the paternal grandmother.[9] She sought out her father and he responded in a caring and empathic way.
[9] Family Report dated 4/07/2019, paras 74-81.
The father reported that the child was “scared she would be taken away from him”,[10] although it is likely that the fear was the father’s and his reassurances that she would not be taken away perpetuated the notion that she could be.
[10] Family Report dated 4/07/2019, para 76.
When she was observed with her mother the child was affectionate and engaged with her.
At six, the child most likely has no memory of living with her mother and no understanding of how she came to live with her father and why. She is not in a position to express views about future parenting arrangements.
She expressed views that she loved her parents and demonstrated her love for the paternal grandmother. The Court takes that into account
The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)
The Father
The child has her most constant relationship with the father. She has a close loving relationship with him. The father’s friend, whom the child calls “Mum”, has just given birth to her child with the father, T, aged two months. The child may also be aware of W, the father’s ten year old daughter from a prior relationship. There are other children of whom the father is alleged to be the father, which he denies, but the child may or may not know them, or of them.
The Mother
The child was last observed in February 2020 at four and a half years by the Court Child Expert. When offered time with her mother during that observation she reacted as follows:[11]
The family consultant simultaneously stated “[X], do you want to spend some time with mummy?” [X] responded “yes” with excitement and ran down the hallway into the observation room. Once she saw the mother, she ran towards her and stated “mummy” in a loud and excited manner and threw her body into the mother’s. The mother laughed and responded warmly. She cuddled [X] and told her how great it was to see her.
[11] Family Report dated 13/03/2020, para 126.
Despite having spent very little time with her mother she retained clear memory and strong positive feelings about her and greatly enjoyed their time together. She told her mother she loved her.
The child has had a disrupted relationship with the mother but maintains a loving relationship with her. She is aware of having one brother in her mother’s home. That is Y now aged three years. She has not met the mother’s partner Mr E nor his six year old son from a prior relationship. She may not be aware of the new baby Z aged four months.
The Paternal Grandmother
The child has a close easy relationship with the paternal grandmother. She was observed to sit and play and talk happily with the grandmother.
The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child
The father has made decisions about the child without consultation with the mother probably because he considers she is not capable of making good decisions.
The mother very much wants to restore fully her relationship with the child and include her into the family she has with Mr E.
The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child
Both parents and the child are maintained by Centrelink benefits.
The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person
The move from living with her father in Sydney to her mother in City R will be a big adjustment for the child.
In her father’s household she has, until a few months ago, been an only child with the undivided attention of her father. She likes Ms G and has been encouraged to call her “Mum”, but knows she is not her mother. She has been materially indulged but has not experienced being part of a committed family relationship.
In the mother’s household she will be one of four children, two of whom are younger than her. Her mother has a partner who will be a stranger to the child. Inevitably there will be some jealousy and competing for attention by all the children including the subject child.
The impact of the change will be ameliorated by the child spending time with the paternal grandmother alone and also visiting her paternal aunt and her children
There will also be a change of school. The evidence is that the mother walks the children to and from school. The child is likely to benefit from being on time and being removed from the angry conflict at her current school between her father and members of his family.
The child will miss her father but will not lose the relationship.
The child will restore her relationship with her mother in time but not without some rough spots. Mr E’s sensitivity to the child needing time with her mother alone will be of assistance.
The practical difficulty and expense of a child spending time with and communicating with a parent
This is a significant issue. There are logistical difficulties for the child seeing each parent and her grandmother. The father lives in Suburb F in Sydney. The mother and paternal grandmother both presently live in City R but the mother has only recently moved from rural NSW and the paternal grandmother is hoping to move further out of City R to J Town.
The journey from the home of the mother or the paternal grandmother to the father’s home is about 200 km. Between City R and J Town is about 30 km, a half hour drive.
Alternate weekends with the father could be emotionally beneficial but are impractical in these circumstances. The child will be travelling by train on Saturdays from City R to the P Region then by car from Suburb D to Sydney, with the same trip in reverse on the following day.
The father and the paternal grandmother each has a driver’s licence and a car.
The mother relies on walking and public transport but is hopeful about learning to drive in future.
The cost of travel, including petrol, is a factor to take into account.
The orders provide for changeovers between the mother and father at Suburb D Railway Station. In future, if the mother and her partner can drive and have a car, the parties could agree on a different changeover point.
The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
Both parents experienced separation as children from their respective families of origin. Both have experienced bouts of mental illness through their lives.
All three parties have engaged in anti-social conduct and have criminal records.
The father revealed considerable anger and resentment towards his mother amplified by her application for residence of the subject child.
The significant factor is the ability of each party to meet the needs of the child. Emotionally her need is to be free to love both her parents and the extended family of each of them and to be equally free to express her thoughts, worries and feelings to any family members she wishes.
The father has not given priority to the child in her education to date perhaps because his own experience of learning at school was an unhappy one. The father was reluctant to enrol her at school or at least tardy about doing it.
Just getting her to school is not enough, she needs active support and encouragement with literacy.
The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant
The child is a six year old girl in Kindergarten. She is healthy and doing well but is a vulnerable child. She has moved around to live in many different houses and households over the six years of her life.
Speech therapy was recommended for the child in 2019. There is no evidence of engagement with a therapist nor any current assessment of the child’s speech.
If the child is an Aboriginal child or a Torres Strait Islander child
The child is indigenous through her father and his father.
There is no evidence of what has been done by the father to instruct the child about her aboriginal heritage or to connect her to her country.
The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents
The father has been committed to caring for the child. She is a healthy, active, child.
His attitude towards the child having a good relationship with the mother has been one of indifference and resistance. However it is apparent that the child loves her mother and thinks positively of her which suggests that the father has shielded the child from his own negative opinions.
The mother became lost in her own emotional and health problems after the parties separated. The mother turned to her own mother for assistance but her behaviour was unacceptable to the maternal grandmother and child went into the father’s care in 2017.
The mother commenced proceedings in the Federal Circuit Court (as it then was) in 2018 with a view to restoring the relationship and having the child returned to her care. She failed to engage with a supervised contact centre and later failed to attend interviews for the first Family Report. The Court accepts that the mother had a sick child at the time and was probably also quite uncertain about the Court process.
The paternal grandmother has a difficult relationship with the father and an improved relationship with the mother. The parents and child lived with her for a time.
The father is likely to be disappointed and hostile towards the mother and the paternal grandmother over the removal of the child from the father’s care. If he can overcome those feelings the child will be assisted in moving between households and communicating if the father accepts the assistance of his mother.
Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order
There has been a history of criminal conduct; violence; aggression; threat; and illicit drug use for both parents as adults. As children themselves they were exposed to such violence.
The mother raised allegations of a most serious assault on her by the father in the early months of their relationship, being struck with a closed fist on her jaw and being smothered with a pillow. She deposes striking the father in the ribs in an attempt to escape him.
The inability of both to resolve differences other than by aggression, threat and assault was probably mitigated by the parties and the infant child moving to live with the paternal great grandmother. She had raised the father from age seven. After six to seven months even that more supported arrangement failed.
Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child
The proposal of the paternal grandmother[12] for the child to live with her for twelve months no doubt came from a protective position. The further proposal that transition for the child to the mother be conditional on a favourable medical report is inappropriate in two ways.
[12] Exhibit 45.
The Court should not delegate to a medical practitioner the responsibility to determine the parenting capacity of the mother in twelve months’ time. That medical opinion would effectively determine a change of residence. Next, any report made available by the mother’s treating medical practitioner would be likely to lead to controversy between the parties as to whether a transition of residence should take place, inevitably leading to further proceedings.
The Court is obliged to assess the present capacity of the parents as they presented in oral and documentary evidence at trial.
The Court has concluded that the mother has accepted the need for medical assistance, that her mental health is stable and that she is able, as well as willing, to take on the care of the subject child.
The change of residence resulting from these orders will be a big change for the child. She will have adjustments to make as a member of her mother’s household, with new relationships to be developed and current relationships diminished.
There is a risk that the mother will not be able to support the child with the transition to living with her, despite all that she has done to improve the stability of her mental health and domestic life. If that were to be the case further proceedings would likely be instituted by the father and/or the paternal grandmother.
However the risk to the child of losing her relationship with her mother and becoming increasingly isolated in the care of the father if she remains living with him, outweigh the risk identified.
Other circumstance that the court thinks is relevant
The role of the paternal grandmother in this matter is an important one. The Court has concluded that the best interests of the child will be promoted by a change of residence to the mother. However the willingness of the paternal grandmother to assist and support the mother and the child will make that transition much easier. The child knows her very well, loves her and has lived in her house.
The paternal grandmother will also assist the father with travel, with communication about the child and her commitment to him as the father of the child, despite what he has said during these proceedings about ending his relationship with her.
CONCLUSION
The Court has concluded that the child should not remain living with the father. The main reason is that she would most likely spend very little if any time with the mother, the other is that the child lives an isolated life with the father with no certainty that the young woman she calls “Mum” in that household will continue to have a role in her life.
Orders made shift the responsibility for the care of the child to the mother. She will also have the obligation to make long term decisions for the child and to keep the father and paternal grandmother advised.
Orders are also made for time and communication for the father and the paternal grandmother. Orders for time for the paternal grandmother are not closely defined in circumstances where the relationship between the mother and paternal grandmother is solid and the mother values the prospect of support and assistance of the paternal grandmother with the care of the child.
For those same reasons the change of residence is to take place by the father delivering the child to the paternal grandmother who will then after, one or two nights, arrange for the child to leave her home and be placed into the care of the mother. The Court is satisfied that the paternal grandmother will do everything she can to ease the transition and encourage the child to settle into the household of the mother. In addition the child will be protected from exposure to conflict of a direct handover by the father to the mother.
The mother proposed a period of three months of no contact by the father with the child but telephone/videolink contact every second day. The Court accepts the view of the Single Expert that a long moratorium on face to face contact would be distressing for the child and also that telephone/video calls during that period would not help.
The expert went on to say, and again the Court accepts, that a moratorium could be ordered “only if the child spends regular time with the paternal grandmother.” At the discretion of the paternal grandmother there could be telephone contact or even face to face contact for the father with the child during times that the child is spending time with her. If it is the case that the father continues to ring his mother every day, it would be natural for the child to speak to him whenever she is present.
Accordingly, provision has been made for a relatively short period, a month, after transition to the mother of no time and communication by the father with the child. This has been done to enable the child to adjust to a new home in a different city and a new school, without direct exposure to the fear and distress her father may feel as a result of that change. During that period the Court is confident that the mother and paternal grandmother will make arrangements for the child to spend time with the paternal grandmother for varying periods of time, including overnight as they mutually decide.
Provision has also been made for the ICL to explain the orders to the child and to reassure her that she will soon be able to talk to her father and spend time with him. Although she is only six the child will benefit from hearing about the orders and their implications from an independent voice familiar with the perspective of all parties.
Orders are made accordingly.
I certify that the preceding one hundred and sixty-five (165) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cleary. Associate:
Dated: 27 January 2022
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